Read previous post on case here.

The fundamental rights suit filed by former Special Adviser to the President on Niger Delta issues and former Chairman of the Amnesty Programme, Mr. Kingsley Kemebradigha Kuku at the Federal High Court, Lagos was heard today, the 1st of December 2015 by Hon. Justice Abang. Mr. Kuku who served under former President, Goodluck Jonathan, is seeking injunctions restraining the Attorney General of the Federation and security agencies in Nigeria including the EFCC, the ICPC, the IGP, the Department of State Security Services and the Nigerian Immigration Service from prosecuting him based on allegations regarding his tenure as Chairman of the Amnesty Programme.

Arguments in respect of the fundamental rights application had begun on the 23rd of November 2015 but were completed at today’s proceedings. Mr. Gazali from the Federal Ministry of Justice who represented the Attorney General of the Federation and the Inspector General of Police in the suit in the continuation of his arguments today stated that the Attorney General of the Federation is estopped from prosecuting only two classes of people: people conferred with immunity under Section 308 of the Constitution and people who have been convicted or acquitted on the same facts. He stated that though the Attorney General is yet to receive any case file related to Mr. Kuku, it would be wrong in law to prevent the Attorney General from prosecuting him if the need arises and relied on the cases of IGP v. Ubah (2015) 11 NWLR (Part 1471), Atakpa v. Ibeto (2015) 3 NWLR (Part 1447) and Ajayi v. The State (2013) 9 NWLR (Part 1360).

Mr. Gazali also argued his Notice of Preliminary Objection which he filed challenging the jurisdiction of the court to entertain the suit. The ground of his objection is that Lagos division of the Federal High Court lacks the jurisdiction to entertain the suit as the two scenarios alleged by the Applicant to be the grounds for his apprehension that his fundamental rights would be violated occurred in Abuja. He added that after the filing of his objection, the Applicant filed a further affidavit deposing to the fact that he would be coming back to Nigeria through the Lagos airport. He argued that the further affidavit filed was an afterthought and the facts deposed to in it were not supported by any fact in the Statement filed in support of the Originating Motion. He argued that the only court that can look into the dispute submitted by the Applicant for adjudication is the Federal High Court sitting in Abuja and urged the court to strike out the suit.

Counsel representing the Department of State Services at today’s proceedings, Mrs. Oyerinde adopted the processes filed in the suit and adopted the arguments already proffered by Mr. Gazali in urging the court to dismiss the suit. Mr. Eboh representing the Nigerian Immigration Service adopted his processes, which he filed in the suit and argued that the suit was speculative. He stated that the service has not prevented the applicant from either entering or exiting the country and that his name was not contained in the suspect index of the Service to warrant his invitation or arrest by the Service as he has claimed.

Mr. Kuku’s counsel, Mr. Oluyede responding to the arguments of Mr. Gazali stated that the applicant does not need to prove the acts of the respondent beyond reasonable doubt. He argued that an applicant in an action to enforce his fundamental rights has to prove either that his rights have been infringed, are being infringed or he apprehends that his rights are about to be infringed. He called this apprehension the smell of danger. He submitted that the Applicant has deposed to sufficient facts which make him apprehensive that his rights are about to be infringed including audio recordings where agents of the Federal Government sought to influence or force former members of the Amnesty Programme to fabricate evidence or give false testimony against him. Responding to Mr. Gazali’s submission made during the arguments of the 23rd of November asking the court to discountenance the audio recordings because they were not played in open court, he stated that the contents of the audio recording was transcribed and the transcript served on all the respondents along copies of the audio recording. He argued that there was no further responsibility on them to play the audio recording in court unless there is a dispute by the respondents on the accuracy of the transcript. Since none of the respondents raised any issue in relation to the accuracy of the transcript, he argued that the transcript is deemed to be an accurate representation of the audio recording. He further argued in response to the submissions made by Mr. Gazali on the classes of people which are exempt from prosecution that apart from the three pleas in bar, there is a fourth ground upon which the court can stop prosecution. Relying on the book titled: “Abuse of process and Judicial Stays of Criminal Proceedings”, 2nd edition authored by Andrew I.T. Choo, he referred to the foreign case of R. v. Connelly which provides that where there is an abuse of criminal process, the court can stop prosecution. He stated that the position set out in the case has been adopted by the Nigerian courts in the case of Eze v. The State. He added that the abuse of criminal process is not synonymous with the abuse of court process in civil proceedings but constitutes an illegal and unjustifiable instigation of the criminal process against a person in a manner that infringes his fundamental rights.

He further asked the court to discountenance the case of IGP v. Ubah relied upon by Mr. Gazali and argued that the decision of the Court of Appeal in the case was reached per incuriam. He stated that the Court of Appeal had held that the right to be presumed innocent until proven guilty began to enure after an accused person has been charged to court without giving recourse to the decision of the Supreme Court in the case of Udukwu v. LPDC (2007) 5 NWLR (Part 1026) 1 where the Supreme court had interpreted the word ‘charged’ in relation to the right of an accused person to be presumed innocent until proven guilty to include the investigative stage of criminal proceedings and not just the formal arraignment before a court.

Responding to the challenge to the jurisdiction of the Lagos Division of the Federal High Court to determine the suit, Mr. Oluyede submitted that the facts deposed to in the further affidavit forms part of the pleadings of the Applicant and argued that in challenging jurisdiction, the respondent is deemed to have admitted all the facts pleaded by the Applicant. He stated that the pleadings show that part of the acts complained of by the Applicant were carried out in Abuja while others were carried on in Lagos. He argued that where an applicant complains about acts which constitute an infringement of his fundamental rights and those acts occur in more than one state, the applicant can sue in any of the states where the acts occurred. He relied on the case of EFCC v. Okeke. He argued that the respondents cannot choose the forum for the applicant and urged the court to dismiss the objection of the respondents while granting the prayers sought by the Applicant.

Mr. Gazali in a quick response on the book relied upon by Mr. Oluyede stated that a book is an opinion of an author and is not an authority binding on the court. The court after taking the arguments of the parties adjourned the suit for Judgment.

The EFCC and ICPC were not represented in the suit.